Argument recap: Court debates which words matter most for applying the Armed Career Criminal Act

Posted Fri, January 14th, 2011 7:46 am by Douglas Berman

The federal Armed Career Criminal Act ("ACCA") significantly increases the minimum and maximum sentences for any felon who illegally possesses a firearm if he has "three previous convictions by any court for a violent felony or a serious drug offense, or both." In Sykes v. United States, the Justices will resolve a circuit split over whether intentionally fleeing from a law enforcement officer in a car after being ordered to stop constitutes a "violent felony" under ACCA. During the Sykes oral argument, the Justices themselves split over exactly which words matter most in resolving this question.

Because state offenses are so varied in their particulars, and because the ACCA sets forth a complicated exposition of what can constitute a triggering "violent felony," many lower federal courts have struggled to determine ACCA's applicability in a variety of settings. And, due in part to many circuit splits over what sorts of offenses trigger ACCA's severe sentences, the Court has recently taken up a large number of ACCA cases. In one recent ACCA case, Chambers v. United States (2009), Justice Alito wrote separately to urge Congress to rewrite ACCA to "rescue the federal courts from the mire into which ACCA's draftsmanship" has pushed the jurisprudence.

But Congress has yet to follow Justice Alito's wise advice; so in the Sykes oral argument, the parties and the Justices had to explore further ACCA's definition of "violent felony" as an offense punishable by more than one year of imprisonment that is "burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." When this provision was recently before the Justice in Begay v. United States (2008), the Court added the interpretive gloss that the final clause is to encompasses "only similar crimes" to those enumerated, which "all typically involve purposeful, "violent' and "aggressive' conduct."

Though a series of question to both parties, Justice Scalia suggested he favored a narrow reading of ACCA; he pointedly asked Assistant to the Solicitor General Jeffrey Wall, who argued on behalf of the United States, just how it made sense to describe fleeing from the police as a "violent felony." In response, Wall stressed the statutory phrase "conduct that presents a serious potential risk of physical injury"; he argued that fleeing from police in a vehicle typically generates much more risk of injury than arson or any of the other enumerated crimes. In turn, Chief Justice John Roberts concentrated on the terms "purposeful," "violent" and "aggressive" from the Begay case; he wondered how flight from the police, even if it could be deemed purposeful and violent, could reasonably be called "aggressive" when the defendant's goal was to avoid any confrontation with authorities.

Throughout the oral argument, two additional factors frequently entered the discourse. First, the Justices pondered the importance of the fact that Indiana law has a distinct statutory provision criminalizing vehicular flight from officers in a manner that creates a "substantial risk of bodily injury." Sykes had been convicted only of "simple" vehicular flight, and the parties disagreed on the formal and practical significance of the fact that Indiana, in contrast to most states, has risk of injury as a distinct element in a distinct statutory provision. Second, the Justices at oral argument explored in various ways whether and how the parties' proposed ACCA constructions would affect offenses like escape from prison or flight from officers on foot.

Sykes presents the Supreme Court with yet another opportunity to decide whether ACCA's severe sentencing terms should be applied very broadly or relatively narrowly. If the Justices rule in sweeping terms for either the Government or the defendant in this case, the holding, dicta and symbolism of the ruling could make the case quite consequential. But oral argument hints that the (perhaps divided) Justices may ultimately be drawn to a narrow and limited ruling in Sykes. A focused ruling would resolves this particular case and circuit split, but likely would do very little to help lower courts navigate their way through an enduring ACCA jurisprudential mire.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.